Case Summaries

NAT’L COALITION FOR GAY AND LESBIAN EQUALITY v.
MINISTER OF HOME AFFAIRS

South Africa Constitutional Court, December 2, 1999

THE FACTS OF THE CASE

The plaintiffs were six South African nationals and their foreign national partners. They were joined by the National Coalition for Gay and Lesbian Equality, and the official Commission for Gender Equality. The defendant was the Minister of Home Affairs for the Federal Government.

The plaintiffs challenged the constitutionality of a South African immigration law which provided preferential immigration status to foreign national spouses, but not to same-sex foreign partners, of South African nationals. Defendants had given same-sex partners exemptions from the law in the past, but as the requests for exemptions increased, they refused to continue to do so. The challenge was based on the new South African Constitution, which which has a clause which explicitly bans discrimination “on the basis of sexual orientation.”

In addition to the question of constitutionality, there was also the question of remedy. If the Court were to find the law unconstitutional, could it “read in” language to make it acceptable?

The initial court, the Cape of Good Hope High Court held that the law was invalid under the “sexual orientation” anti-discrimination provision of the South African Constitution.

The Constitutional Court unanimously held that the law was unconstitutional and that the law should be read to include preferential immigration status for foreign national same-sex partners.

THE SIGNIFICANCE OF THE USE OF FOREIGN LAW IN THIS CASE

This case relies significantly upon foreign law, which it described as “an important source from which to illuminate our understanding of the Constitution and the promotion of its informing norms.” In particular, the Court relied upon decisions from Canada, New York State, England, New Zealand, and Israel. This is important because the Honorable Edwin Cameron, one of the justices on the South Africa Constitutional Court, recently attended a conference in London on the legal recognition of same-sex partnerships. At this conference, which we attended, every one of these cases was discussed and Canadian law was held up as a model for all countries. Justice Cameron even moderated a panel at which the pending National Coalition for Gay and Lesbian Equality case was discussed by advocates for the recognition of same-sex partnerships. Also on the panel were U.K. Lord Slynn and Canadian Justice L’Heureux-Dube. The South African Court cited to Canadian law at least 12 times in the case and specifically to opinions of Justice L’Heureux-Dube five times. The U.K. case Fitzpatrick (written by Lord Slynn) was cited twice, as was El-Al (Israel, twice), Braschi v. Stahl (New York State) and Quilter (New Zealand).

THE REASONING OF THE CONSTITUTIONAL COURT

1. Rejection of the Minister’s Defenses

The Minister first argued that an administrative committee could interpret “spouse” to include same-sex partners, therefore the Court should wait for it to do so. Bu the Court held that the term “spouse” was not conducive to that interpretation. The law was thus ripe for challenge.

The Minister then argued that the government had total power to exclude foreign nationals, since constitutional rights only extend to South Africans. The Court held that the interests of the foreign nationals at issue here were also the interests of their South African partners, therefore constitutional rights applied. The Court found that the relevant sections were Sec. 9, forbidding discrimination on many bases (including “sexual orientation” and marital status), and Sec. 10, which provides that every person has a “right to have their dignity respected and protected.”

The Minister also argued that the law discriminated based not on the “sexual orientation” of the foreign nationals, but simply the fact that they were not spouses. Further, the Minister argued, homosexuals could marry a person of the opposite sex. They were challenging a product of their own choice. The Court responded that marriage excludes same-sex partners by definition. Therefore, because the law relies on marriage as a classification, it excludes “gays and lesbians” in “a conjugal same-sex relationship, which is the only form of conjugal relationship open to gays and lesbians in harmony with their sexual orientation” (a formulation used often in the case).

The Court added that it was concerned with the relationship, not simply an individual right. It held that South African law did not provide “appropriate recognition” of “same-sex life partnership, as a relationship.” The Court defined the right at issue as “the constitutional injunction that gays and lesbians cannot be discriminated against on the grounds of their own sexual orientation and the constitutional right to express that orientation in the relationship of their own choosing.” The Court concluded that two types of discrimination were being implicated: marital status discrimination and “sexual orientation” discrimination. Marriage is required to claim the benefit, and the benefit is not available to “gays and lesbians engaged in the only form of conjugal relationship open to them in harmony with their sexual orientation.”

2. Defining and Applying the Constitutional Standard

According to the Court, the process for determining whether a law is constitutional is to look at the impact on the group involved, and see if the alleged governmental interest outweighs it.

a. Identifying the Discriminatory Impact on the Group

Identifying the impact on the group involved involves three steps. (1) Look to see if there has been past discrimination. The Court held that homosexuals have historically been discriminated against. (2) Determine the purpose of the law. The Court held that while the purpose of protecting legal marriage was good, times are changing (as evidenced by changed laws of other jurisdictions) and there is “growing concern for, understanding of, and sensitivity towards human diversity in general and to gay and lesbian relationships in particular.” (3) Observe the effect on the dignity of the group. The Court noted with approval that the Canadian Supreme Court has “come to see the central purpose of its equality guarantee as the protection and promotion of human dignity.” The Court held that the impact of the law was to “reinforce [two] harmful and hurtful stereotypes of gays and lesbians”: (a) that sodomy is wrong, and (b) that same-sex partnerships are less valuable because they are not open to procreation. This reinforcement of stereotypes shows that the law harms the dignity of homosexuals.

b. Evaluating the Alleged Governmental Interest

The Minister claimed that, notwithstanding a finding of any discrimination, the law advanced the state’s interest in preserving traditional marriage, and this should outweigh any group impact. The Court rejected the claim. It said it could see no connection between this law and protecting traditional marriage, and in any case, this interest had to be balanced with the constitutional rights of same-sex partnerships. For this conclusion, the court cited Justice L’Heureux-Dube of the Supreme Court of Canada:

[I]n some ways, the debate about family presents society with a false choice. It is possible to be pro-family without rejecting less traditional family forms. The traditional family is not the only family form and non-traditional family forms may equally advance true family values.

The Court then held the law unconstitutional as it applied to same-sex partnerships.

3. The Question of Remedy

First the Court held that it had the power to “read in” language that would correct the law.

(They could have declared it unconstitutional and send it back to the legislature for amendment.)

Then the Court provided some guidelines for administrative agencies administering the decision.

Finally, the Court ordered the law “to be read as though the following words appear therein after the word ‘spouse’: ‘or partner, in a permanent same-sex life partnership.’”